SECURITY AGREEMENT
This
SECURITY AGREEMENT (this “Agreement”), effective as of
February 11, 2008, is made, executed and given jointly and severally by Red
Mile, Inc., a Delaware corporation and each of its subsidiaries, with a
principal place of business at 0000 Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, XX
00000 (collectively referred to herein as the “Debtor”), to and in favor of
Tiger Paw Capital Corp., an Alberta Company with a principal place of business
at 0000 00xx Xxxxxx
XX, Xxxxxxx, Xxxxxxx, X0X E42 (the “Secured
Party”). Capitalized terms used in this Agreement and not
defined herein shall have the meaning given such terms in the Revolving Line of
Credit Agreement, dated as of February 11 , 2008 (as amended or modified from
time to time, the “Credit
Agreement”).
RECITALS
FOR VALUE
RECEIVED and pursuant to the Credit Agreement, a certain promissory note (“Note”) referred to in the
Credit Agreement to be executed contemporaneously herewith, the Secured Party
has agreed to lend up to One Million and 00/100 Dollars ($1,000,000.00) upon
such terms as stated therein. As security for the Note and also to
secure any other obligations or liability of the Debtor to the Secured Party,
direct or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, whether under the Note, the Credit Agreement, or
otherwise, Debtor hereby grants and conveys to the Secured Party, subject to any
and all restrictions on Debtor set forth in any law, regulation, or contractual
restriction as set forth in Schedule A to the Credit Agreement, a security
interest in all assets owned by the Debtor, including but not limited to all
tangible and intangible personal property owned by the Debtor, all proceeds from
the sale or disposition of the assets owned by the Debtor, all replacements or
additions to the assets owned by the Debtor, any intellectual property owned or
licensed by the Debtor, including but not limited to source and object codes,
and all inventory or work-in-progress of Debtor acquired or produced hereafter
(collectively referred to herein as the “Collateral”),
all proceeds thereof, if any, and all additions and accessions
thereto.
AGREEMENT
In
consideration of the mutual representations, warranties, covenants and
agreements set forth in this Agreement, the Credit Agreement and the Note, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto intending to be legally bound do
hereby agree as follows:
ARTICLE
I
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE PARTIES
1.1 Recitals. The
Debtor and the Secured Party hereby acknowledge and agree that the recitals set
forth above are true and correct and hereby are incorporated herein by
reference.
1.2 Good Standing;
Authorization. Each entity comprising the Debtor is duly
organized, validly existing, and in good standing under the laws of the State of
Delaware and authorized to do business in all relevant jurisdictions. Each
entity comprising the Debtor has been duly authorized to execute and deliver
this Agreement, which is a valid and binding obligation of
Debtor.
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1.3 Use of Loan
Proceeds. The Debtor and the Secured Party hereby acknowledge
and agree that the debt evidenced by the Note and secured by the Collateral is
for general corporate business purposes for the sole benefit of the Debtor,
subject to the restrictions set forth in the Credit Agreement.
1.4 Location of
Collateral. That portion of the Collateral consisting of
tangible personal property will be kept at Debtor’s principal place of business
identified above throughout the duration of this Agreement. Debtor
will promptly notify Secured Party of any change in the location of such
tangible personal property and will not remove such Collateral from Debtor’s
current principal place of business in 0000 Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, XX
00000 without written consent of the Secured Party.
1.5 Priority of Security
Interest. Debtor is the sole owner of the Collateral free from
any adverse lien, security interest or encumbrance, with the exception of the
security interest granted hereunder, and Debtor will defend the Collateral
against all claims and demands of all persons at any time claiming the same or
any interest therein. Debtor represents that no financing statement
covering any of the Collateral or any proceeds thereof is on file in any public
office and that none will be filed without the prior written consent of the
Secured Party. The lien granted to the Secured Party under this
Agreement will constitute a first priority lien on the Collateral on the filing
of a financing statement and Debtor’s grant of such lien to Secured Party does
not constitute a fraudulent conveyance under any applicable law in the States of
California, Delaware or any other jurisdiction.
Secured
Party acknowledges that in the event debtor completes an Alternative Financing
(as defined in the Credit Agreement), Secured Party’s security interest will
rank pari passu in relation to total amounts advanced in aggregate amongst
amongst all secured parties that have participated in the Alternative
Financing.
1.6 Sale, Transfer or Other
Disposition Prohibited. Debtor will not sell, transfer, or
otherwise dispose of any of the Collateral or any interest therein, or offer so
to do, without the prior written consent of Secured Party, except for usual and
customary inventory items sold in the ordinary course of the Debtor’s business
to third parties on arm’s length terms.
1.7 Maintenance and Use of
Collateral. Debtor represents that Debtor owns all of the
Collateral free and clear of all liens and encumbrances and agrees that Debtor
will not encumber, assign, or grant any security interest in or file any
assignment or financing statement with respect to the Collateral, or permit any
of the foregoing, without the prior written consent of the Secured Party, and
Debtor hereby represents that Debtor has not heretofore done
so. Debtor represents that Debtor will not use the Collateral in
violation of any statute or ordinance. Secured Party may examine and
inspect the Collateral at any time, wherever located. Debtor
acknowledges that, even if the Secured Party sells, assigns or otherwise
transfers the Note to a third party, the Secured Party’s security interest in
the Collateral will survive, and will extend to cover any proceeds from the sale
of the Collateral, until the Note is paid in full. Debtor, at its own
cost and expense, will maintain the Collateral in good repair and regularly
updated condition.
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Unless
otherwise approved by prior written consent of the Secured Party, Debtor shall
(i) not sell, assign, lease, transfer or otherwise dispose of any part of the
Debtor’s business or the Debtor’s assets, except for inventory items in the
ordinary course of the Debtor’s business; (ii) not sell, assign, lease, transfer
or otherwise dispose of any assets, or enter into any agreement to do so; (iii)
not enter into any sale and leaseback agreement covering any of its fixed
assets; (iv) maintain and preserve all rights, privileges, and franchises the
Debtor possesses that are material to the operation of the Debtor’s business;
and (v) make any repairs, renewals, or replacements to keep the Debtor’s
properties and the Collateral in good working condition.
1.8 Payment of
Taxes. Debtor will pay promptly when due all taxes and
assessments upon the Collateral and the Note.
1.9 Perfection of Security
Interest and Further Assurances. Debtor authorizes Secured
Party to file, in jurisdictions where this authorization will be given effect, a
financing statement signed only by the Secured Party describing the Collateral;
and from time to time at the request of Secured Party, Debtor shall execute one
or more financing statements and such other documents (and Debtor shall pay the
costs of filing or recording the same in all public offices deemed necessary or
desirable by the Secured Party) and do such other acts and things, all as the
Secured Party may request, to establish and maintain a valid security interest
in the Collateral (free of all other liens and claims whatsoever) to secure the
payment of the Note, including, without limitation, deposit with Secured Party
any certificate of title issuable with respect to any of the Collateral and
notation thereof of the security interest hereunder. At any time and
from time to time, upon request of the Secured Party, Debtor will give, execute
and promptly return by certified mail or overnight delivery service to the
Secured Party, any notice, financing statement, continuation statement,
instrument, document or agreement that the Secured Party may consider necessary
or desirable to create, preserve, continue, perfect or validate the assignments
and security interest granted hereunder or which the Secured Party may consider
necessary or desirable to exercise or enforce its rights hereunder with respect
to such assignment and security interest. Debtor shall notify the
Secured Party in writing of a change in the Debtors’ respective names,
identities, or corporate structures within five (5) calendar days after the
change. Debtor shall also cooperate with the Secured Party to enable
the Secured Party to file either a new financing statement or an amendment to
the existing financing statement to reflect the change and to continue the
Secured Party’s security interest in the Collateral.
1.10 Insurance. Debtor
shall at all times maintain adequate insurance in appropriate form and amounts,
which shall not be less than the outstanding principal and accrued interest on
the Note, and with reliable companies. Copies of certificates of
insurance or policies shall be provided to the Secured Party, naming Secured
Party as an additional insured. Debtor shall give immediate written
notice to the Secured Party and to insurers of loss or damage to the
Collateral.
ARTICLE
II
DEFAULT
BY DEBTOR
2.1 Events of
Default. Debtor shall be in default under this Agreement upon
the happening of any of the following events or conditions, whether the
requirement is contained in this Agreement, the Credit Agreement, or any
ancillary agreement between the parties: (a) failure or omission to
pay when due any amounts due under the Note (or any installment thereof or
interest thereon), or default in the payment or performance of any obligation,
covenant, agreement, or liability contained or referred to herein, including but
not limited to the Credit Agreement and the Escrow Agreement, giving effect to
any period of grace provided therein;
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(b) any
warranty, representation, or statement made or furnished to Secured Party by or
on behalf of any Debtor proves to have been false in any material respect when
made or furnished; (c) loss, theft, substantial damage, destruction of any
material portion of the Collateral not covered by adequate insurance, or the
execution of any levy, seizure, or attachment thereof or thereon; (d) Debtor
becomes insolvent or unable to pay debts as they mature or makes an assignment
for the benefit of creditors, or any proceeding is instituted by or against
Debtor alleging that Debtor is insolvent or unable to pay debts as they mature
which is not dismissed within sixty (60) days after the institution thereof; or
(e) the appointment of a receiver for the Collateral or any portion thereof or
for any property in which Debtor has an interest (collectively, “Events of
Default”).
2.2 No
Waiver. No waiver by Secured Party of any default shall
operate as a waiver of any other default or of the same default on a future
occasion. No delay or omission on the part of Secured Party in
exercising any right or remedy shall operate as a waiver thereof, and no single
or partial exercise by Secured Party of any right or remedy shall preclude any
other or further exercise thereof or the exercise of any other right or
remedy.
2.3 Performance of Debtor’s
Obligations. Upon Debtor’s failure to perform any of its
duties hereunder, Secured Party may, but it shall not be obligated to, perform
any of such duties and Debtor shall forthwith upon demand reimburse Secured
Party for any expenses incurred by Secured Party in so doing. All
such sums advanced by the Secured Party shall be deemed obligations of the
Debtor secured hereby.
ARTICLE
III
REMEDIES
3.1 General
Remedies. Upon the occurrence of any Events of Default
hereunder, or under the Credit Agreement, or any ancillary agreement between the
parties, including but not limited to the Escrow Agreement, which continues
after any period for cure set forth therein, or at any time thereafter, Secured
Party may, at its option, declare the Note secured hereby (subject to any
curative period contained therein), immediately due and payable without demand
or notice and the same there upon shall immediately become and be due and
payable without demand or notice, and Secured Party shall have and may exercise
from time to time any and all rights and remedies of a Secured Party under the
California Uniform Commercial Code and any and all rights and remedies available
to it under any other applicable law; and upon request or demand of Secured
Party, Debtor shall, at its expense, assemble the Collateral and make it
available to the Secured Party, for the sole ownership and use of the Secured
Party, at a convenient place acceptable to Secured Party; and Debtor shall
promptly pay all costs incurred by the Secured Party in the enforcement of
rights hereunder, including reasonable attorneys’ fees and legal expenses, and
expenses of any repairs to any of the Collateral and expenses of any repairs to
any realty or other property to which any of the Collateral may be affixed or be
a part.
3.2 Collection of
Proceeds. Upon the occurrence of any uncured Events of Default
hereunder, Secured Party may demand, enforce, collect and xxx for all Collateral
and for all sums due Debtor (whether classified as accounts or general
intangibles), and all proceeds thereof (either in Debtor’s name or Secured
Party’s name at the latter’s option), with the right to enforce, compromise,
settle or discharge any rights in such Collateral or proceeds thereof, with all
such collateral and the proceeds thereof being deemed to be the sole and
exclusive property of the Secured Party.
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Debtor
appoints Secured Party as Debtor’s attorney-in-fact to endorse Debtor’s name on
all checks, commercial paper and other instruments pertaining to the
proceeds.
3.3 Notice and Disposition of
Collateral. Upon the occurrence of any uncured Events of
Default hereunder, unless the Collateral is perishable or threatens to decline
rapidly in value or is of a type customarily sold on a recognized market,
Secured Party will give Debtor reasonable notice of the time and place of any
public sale thereof or of the time after which any private sale or any other
intended disposition thereof is to be made. The requirements of
reasonable notice shall be met if such notice is mailed, postage prepaid, or
sent by overnight delivery service to Debtor at the address of Debtor shown at
the beginning of this agreement or at any other address shown on the records of
Secured Party, at least ten (10) calendar days before the time of the sale or
disposition. Expenses of retaking, holding, preparing for sale,
selling or the like, including attorneys’ fees, paralegals’ fees and legal
expenses of Secured Party, shall become a part of the Note and be paid out of
the proceeds of the Collateral or by Debtor to Secured Party. Upon
disposition of any Collateral after the occurrence of any default hereunder,
Secured Party shall account to Debtor for any surplus, but Secured Party shall
have the right to apply all or any part of such surplus (or to hold the same as
a reserve) against any amounts due under the Note, whether or not they, or any
of them, be then due, and in such order of application as Secured Party may from
time to time elect. The Debtor shall remain liable for any deficiency
resulting from a sale of the Collateral and shall pay any such deficiency
forthwith on demand. Notwithstanding anything contained in this
Agreement to the contrary, in the event of an uncured Event of Default under
this Agreement, the Secured Party may elect to keep, own and use the Collateral
for its own benefit in consideration for the amount of indebtedness then
outstanding and due to the Secured Party by the Debtor.
ARTICLE
IV
GENERAL
PROVISIONS
4.1 Additional
Security. This Agreement shall constitute additional security
and rights in favor of the Secured Party and shall not be deemed to diminish or
reduce any rights of the Secured Party under any other instrument executed in
connection therewith.
4.2 Time of the
Essence. Time is of the essence of this
Agreement.
4.3 Heirs, Successors and
Assigns. The terms of this Agreement shall bind and inure to
the benefit of the heirs, devisees, representatives, successors and assigns of
the Secured Party. The foregoing sentence shall not be construed to
permit Debtor to assign this Agreement.
4.4 JOINT AND SEVERAL
OBLIGATIONS. THE OBLIGATIONS OF THE DEBTORS HEREUNDER SHALL BE
JOINT AND SEVERAL, AND ACCORDINGLY, EACH DEBTOR CONFIRMS THAT IT IS LIABLE FOR
THE FULL AMOUNT OF THE NOTE AND ALL OF THE OBLIGATIONS AND LIABILITIES OF EACH
OF THE OTHER DEBTORS HEREUNDER. DEBTOR ACKNOWLEDGES AND AGREES THAT THE SECURED
PARTY SHALL NOT BE REQUIRED FIRST TO INSTITUTE SUIT OR EXHAUST ITS REMEDIES
AGAINST BOTH DEBTORS, BUT THAT THE SECURED PARTY, IN ITS SOLE DISCRETION, MAY
INSTITUTE SUIT OR EXHAUST ITS REMEDIES AGAINST EACH DEBTOR
INDIVIDUALLY.
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4.5 Governing Law; Mutual Waiver
of Jury Trial.
(a) THIS
AGREEMENT SHALL BE GOVERNED BY, INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE
DOMESTIC LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF DELAWARE TO BE APPLIED.
(b) AS A
MATERIAL INDUCEMENT FOR THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT, THE
DEBTOR AND THE SECURED PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ALL OF THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY PROCEEDING
BROUGHT TO ENFORCE OR DEFEND ANY TERMS OR PROVISIONS OF THIS
AGREEMENT. NO PARTY HERETO SHALL SEEK TO CONSOLIDATE ANY PROCEEDING
IN WHICH THE RIGHT TO A TRIAL BY JURY HAS BEEN WAIVED WITH ANY OTHER PROCEEDING
IN WHICH THE RIGHT TO A TRIAL BY JURY CANNOT BE, OR HAS NOT BEEN,
WAIVED. THE NON-PREVAILING PARTY IN ANY DISPUTE OR LEGAL ACTION
BETWEEN THE PARTIES AGREES TO PAY THE FULL AMOUNT OF ALL LEGAL FEES INCURRED BY
THE PREVAILING PARTY IN SUCH DISPUTE OR LEGAL ACTION. THE TERMS AND
PROVISIONS OF THIS SECTION 4.5 HAVE BEEN DISCUSSED FULLY BY THE PARTIES HERETO,
AND THE TERMS AND PROVISIONS HEREOF SHALL NOT BE SUBJECT TO ANY
EXCEPTIONS.
4.6 Jurisdiction and
Venue.
(a) Each of
the parties hereto hereby irrevocably and unconditionally submits, for himself,
herself or itself and his, her or its assets, to the exclusive jurisdiction of
any Delaware state court or federal court of the United States of America having
jurisdiction over New Castle County, Delaware, and any appellate court from any
such Delaware state court or federal court, in any proceeding arising out of,
connected with, related to or incidental to this Agreement or the transactions
contemplated hereby, or for recognition or enforcement of any judgment arising
therefrom, connected thereto, related thereto or incidental thereto, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all claims
with respect to any such proceeding may be heard and determined in any such
Delaware state court or, to the extent permitted by applicable law, in any such
federal court. Each of the parties hereto hereby agrees that a final
judgment in any such proceeding shall be conclusive and may be enforced in any
other jurisdiction by a proceeding on the judgment or in any other manner
provided by applicable law.
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(b) Each of
the parties hereto hereby irrevocably and unconditionally waives, to the fullest
extent he, she or it legally and effectively may do so, any objection that he,
she or it now or hereafter may have to the laying of venue of any proceeding
arising out of, connected with, related to or incidental to this Agreement or
the transactions contemplated hereby in any Delaware state court or federal
court of the United States of America sitting in New Castle County, Delaware, or
any appellate court from any such Delaware state court or federal
court. Each of the parties hereto hereby irrevocably and
unconditionally waives, to the fullest extent he, she or it legally and
effectively may do so, the claim or defense of an inconvenient forum to the
maintenance of such proceeding in any such Delaware state court or federal
court.
4.7 Entire
Agreement. This Agreement, the Note and the Escrow Agreement
contain all of the agreements between the parties hereto with respect to the
relationship created by this Agreement and supersede all prior agreements or
understandings among the among the parties hereto with respect to the subject
matter of this Agreement, and supersede all prior contracts and other
undertakings among the parties hereto with respect to the subject matter
hereof.
IN
WITNESS WHEREOF, this Agreement has been duly executed as of the day and year
first above written.
DEBTOR:
WITNESS: Red Mile Entertainment, Inc.,
a Delaware corporation
________________________________ By: ____________________________
Name:
Name: ____________________________
Title: ____________________________
SECURED PARTY:
Tiger
Paw Capital
Xxxxx
Xxxxxx
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